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GUJARAT HIGH COURT
D.N. Ray, J.
Tofik Shaikh – Applicant
versus
State of Gujarat and Ors. – Respondents
R/Special Criminal Application (Direction - to Lodge FIR/Complaint) No.7352 of 2026
Decided on 29.5.2026
Counsel for the Parties:
For the Applicant No.1:Mr. Robin Bhatt, Advocate For Mr. Musaib I Shaikh (10565)
For the Respondents No.1: Mr. Hardik Dave, Public Prosecutor with Ms. Maithili Mehta, APP
IMPORTANT POINT
Custodial death is a heinous crime but alternative remedies cannot be bypassed.
Headnote:
Constitution of India – Articles 21 and 226 – Custodial death – Custodial death is a heinous crime – Whenever allegations of custodial death have been raised in society, same have been met by denial and reluctance on part of authority, who was supposed to protect deceased – Directing petitioner to approach Commissioner of Police and thereafter, Magistrate would be an illusory remedy and not an efficacious alternate remedy, inasmuch as, both Commissioner of Police as well as Magistrate would be expected to be partisan and biased and will not be expected in law to perform their statutory obligations – Remedy for non-registration of FIR is merely statutory in nature and involvement of Writ Court has been deprecated – However, in view of mandate of Supreme Court, liberty reserved to parties to espouse such alternative remedies as may be available in accordance with law – Any recourse to such remedy shall be considered on its own merits by competent forum. (Paras 7, 9, 12, 13.1 and 13.2)
Result: Special Criminal Application dismissed.
JUDGMENT (CAV)
D.N. Ray.—Heard Mr.Robin Bhatt, learned advcoate for Mr. Musaib I. Shaikh, learned advocate for the petitioner and Mr. Hardik Dave, learned Public Prosecutor assisted by Ms. Maithili Mehta, learned Additional Public Prosecution for the respondent – State. Considering the urgency in the matter, the petitioner was heard finally at the admission stage with the consent of the parties.
Outline of the Petition
2. The present petition has been preferred by the petitioner under Article 226 of the Constitution of India, seeking issuance of appropriate directions from this Court for registration of an FIR and for conducting a fair, impartial and independent investigation in relation to the alleged custodial assault and custodial death of the petitioner’s father, namely late Mr. Jairuddin Gyasuddin Shaikh.
Factual Matrix
3. The allegations facts germane to the controversy involved are briefly set out below:
3.1 On 18.05.2026, the deceased, namely Jairuddin Gyasuddin Shaikh, came to be arrested at about 16:30 hours in connection with the offence registered vide C.R. No. 11191028260200/26 with Vejalpur Police Station for the offences punishable under the provisions of the Bharatiya Nyaya Sanhita (BNS), the Gujarat Animal Preservation Act, 1954 and the Prevention of Cruelty to Animals Act, 1960.
3.2 It is the case of the petitioner that during the period when the deceased was in police custody and/or present within the premises of the concerned police station on 18.05.2026, he was allegedly subjected to physical assault and administered certain unidentified substances. On 19.05.2026, at approximately 12:40 hours, the deceased was taken to Sola Civil Hospital, Ahmedabad for medical treatment. However, owing to the non-availability of a bed in the ICCU/MICU as well as the casualty ward of the said hospital, the attending medical officer advised the relatives of the deceased to shift him to another medical institution. Accordingly, the deceased was referred to Asarwa Civil Hospital, Ahmedabad and was shifted there at about 01:46 hours.
3.3 Thereafter, at about 10:28 hours, the deceased was admitted to Sardar Vallabhbhai Patel Institute of Medical Sciences and Research (SVP Hospital), Ahmedabad, where medico-legal case papers came to be prepared. That after administration of treatment and conducting certain medical tests, the deceased collapsed at about 11:54 hours and was declared dead by the attending doctors at SVP Hospital. Subsequently, an Accidental Death case being A.D. No.18 of 2026 came to be registered at about 18:30 hours.
3.4 On 20.05.2026, since the deceased had expired while in custody, the Officer-in-Charge and Police Inspector of Vejalpur Police Station informed the Sub-Divisional Magistrate, West Zone, Ahmedabad for conducting the inquest proceedings over the dead body of the deceased. Pursuant thereto, an Inquest Panchnama was conducted by the SDM-cum-Deputy Collector, Ahmedabad City (West) between 16:05 hours and 16:40 hours, which proceedings were also video-graphed. On the same day, the Police Inspector, Vejalpur Police Station, informed the learned Chief Judicial Magistrate, Ahmedabad Rural, Mirzapur regarding the death of the deceased while in custody.
3.5 It is the case of the petitioner that the medico-legal case papers record that the incident had occurred at Vejalpur Police Station and also contain an endorsement stating “Ask for Postmortem”. According to the petitioner, the said material disclosed commission of a cognizable offence warranting registration of an FIR and an independent investigation.
3.6 On 20.05.2026, the postmortem examination of the deceased was conducted by a panel of five doctors attached to the Department of Forensic Medicine, B.J. Medical College, Ahmedabad, between 18:05 hours and 19:30 hours. On the same day, the statement of the petitioner was recorded by the PSI, Vejalpur Police Station in connection with the inquiry relating to A.D. No.18 of 2026. Subsequently, the investigat
